right. 35/ Broadcasting is another separately enumerated right, 36/ and appears to be limited to transmissions intended to be received directly by the general public. 37/ Whether transmissions sent through satellites, except as direct broadcasts, are within the "broadcasting" right of the Convention has not been settled. Communication to the public by wire (essentially cable origination and retransmission) is another separately articulated right. 38/ The public communication of a broadcast is another separately designated right. 39/ Copyright proprietors of literary works have a separately designated exclusive public performance and public communication by wire right in all cinematographic adaptations of their works. 40/ Only one express exception to the right of public performance (other than broadcasting-related exceptions) appears in the Convention: Article 10(2) allows domestic legislation to "compatible with fair practice." establish certain educational exemptions Many Berne countries, however, regard this public performance right to be subject to an implied exception regarding religious, cultural, and patriotic events. 41/ The lack of a definition of 35/ Article 11 ter. 36/ Article 11 bis (1)(i). 37/ WIPO GUIDE at 67, 111bis. 6. 38/ Article 11 bis (1)(ii). 39/ Article 11 bis (1)(iii). historical. 40/ Article 14(1)(ii). This variant terminology appears largely When new technological developments occurred, the Berne Convention was modified to articulate the new right separately. Thus, the public performance right relating to li e performances was introduced into the Convention in 1908. WIPO GUIDE, at 64, 11.2. The broadcasting right first appeared in 1928. Id. at 66, 111bis. 1. The right of authors of literary and artistic works to authorize cable retransmission of cinematographic adaptations was added in 1967. Id. at 83, ¶14.7. 41/ Origins of this implied exception are usually traced back to Documents of Brussels Revision Conference, June 5-26, 1948, pp. 100 and 263-4 (1948). In the General Report on this Revision Conference, the legitimacy of such an exception was expressly recognized. public performance would appear to give Berne members a certain leeway in excluding certain incidental or limited performances from the exclusive public performance right. Comparison of the United States law to the Berne Convention is difficult because of the different terminology related to public performances. In some areas the United States law apparently affords a higher level of protection than mandated under the Berne Convention. 42/ On the other hand, certain of the specific exemptions provided in the United States law are called into question by some language of the Berne Convention. 43/ The permissible exceptions created by Article 10(2) of Berne for educational purposes would appear to allow several of the limitations of the performance right established by section 110. But, $110 covers a rather wide range of public performances, some "live" and others of a "broadcasting" nature. A number of the exceptions in §110, particularly $110(4) and (5) are clearly unusual insofar as the practices of Berne states are concerned. The delicacy of compromises within the Berne Union on "minor reservations" to non-broadcast public performance rights makes it desirable for the United States to examine its law carefully in this area. And, of course, $110 as a whole represents a difficult and important rightsholders and user groups. Our own compromises should not, we suggest, be disturbed except upon the most pressing need and clear conflict with Berne. reconciliation between our 42/ Under the United States approach, new communications to the public through technological development fall generally within the public performance right because of the section 101 definition of "to perform or display a work 'publicly. With respect to the meaning of the term "public," the Senate Report of the Copyright Revision Bill states "performance in 'semipublic' places such as clubs, lodges, factories, summer camps, and schools are 'public performances' subject to copyright control." [Sen. Rep. No. 473, 94th Cong., 1st Sess. 60 (1975)]. The Berne Convention tends to view as "public" only those live performances before a large social gathering. 431 The primary questions appear limited to sections 110(4), 110(5), and 116 of our law. The first two are discussed in this part. Section 116 was discussed, supra, part IV (C). Congress, should it determine that incompatibilities exist between Berne and parts of $110, may wish to examine structural rather than substantive changes in affected provisions. F. Cable Retransmission Under the Paris text of the Berne Convention, Article 11 bis covers broadcasting, cable originations, and cable retransmissions. That provision, in its entirety provides: Article 11 bis (1) Authors of literary and artistic works shall enjoy the (i) the broadcasting of their works or the communication (ii) any communication to the public by wire ог by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one; (iii) the public communication by loud-speaker or any other (2) It shall be a matter for legislation in the countries of (3) When considering U.S. adherence to the Berne Convention, it is important to determine whether the compulsory licensing provisions of section 111 of the U.S. Copyright Act of 1976 44/ meet the requirements of the Convention. The obligations imposed on Berne members by Article 11 bis have been the subject of controversy for a number of years. At present, no consensus has arisen. In general, the debates over Article 11 bis reveal two differing views. Under one view, Article 11 bis gives authors and copyright proprietors an exclusive right to authorize retransmission which may be restricted only after actual private negotiations have failed to produce satisfactory results (sometimes referred to as "agreed licensing"). Under a second view, adhering nations have wide discretion in determining "the conditions" under which the cable retransmission right is exercised, provided some form of equitable renumeration is established. 45/ Further, there is a difference of views on the basic question of when any liability for cable retransmission of broadcast programming arises for local or distant signals, or both, and whether such distinctions may apply to foreign broadcasts. - Recently, a document addressing the obligations under Article 11 bis was prepared by the International Labor Office (ILO), the Secretariat of UNESCO, and the International Bureau of the World Intellectual Property 44/ In the case by copyrighted works transmitted as part of cable originated programming, the Copyright Act accords an exclusive right of public performance and the compulsory license does not apply. 45 / A nation taking this latter view is Austria. Under section 17(3) of the Austrian copyright law, no protection is granted against simultaneous cable retransmissions of the programming of the Austrian national broadcasting organization. The Austrian statute provides that licenses for the broadcasts of this state broadcasting organization include cable retransmission within Austria. In addition, under section 59(a) a compulsory licensing system is established for the retransmission of certain foreign broadcasts; authors may exercise their right for equitable renumeration only through licensing bodies. Organization (WIPO). 46/ [ANNOTATED PRINCIPLES OF PROTECTION OF AUTHORS, and sometimes heated debate, the Berne, UCC, and Rome (1961) Subcommittees agreed that: 149. The solution of the issues in question should be found at the national level in each country according to the social and political conditions prevailing there and subject to the country's international obligations. The subcommittees are of the opinion that the draft annotated principles, together with the observations contained in the said report, could form an important element in the consideration of such issues at the national level. 47/ While the draft principles are only an extended commentary on the equities and law surrounding the retransmission and origination activities of cable television systems, they are nonetheless an extraordinary window looking out upon the tumultuous development of cable, principally in Western Europe. The principles document and, more importantly, the development of national laws on cable television should be carefully examined by the Congress as a key issue affecting United States adherence to the Berne Convention. Our preliminary view is that it is possible to conclude that the 1976 Copyright Act's treatment of cable television meets the standards of the Berne Convention. The legislative history behind section 111 reveals a Congressional concern that a requirement of prior consent for the retransmission of broadcast signals was not practical; we agree that cable retransmissions are a public performance; we seek to provide an equitable remuneration under due process of law; we generally impose full copyrightability for cable originations including altered or non-simultaneous 46/ 20 Copyright 131 (1984). 471 Report, Subcommittees of the Berne Executive Committee, Intergovernmental Copyright Committee of the UCC and Intergovernmental Committee of the Rome Convention, para. 9 (Geneva, Switzerland, 5-7 December 1983), printed in 18 UNESCO COPYRIGHT BULLETIN 78, 102 (1984). |